The Full Court of the Federal Court has ruled that employers cannot require and can only request that employees work on public holidays. What can employers do?

By Stephen Kemp Nicholas Parkinson Chloe Placzek

6 April 2023

In its recent judgment in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Full Court of the Federal Court of Australia ruled that to comply with section 114 of the Fair Work Act 2009 (FW Act) employers must, in the first instance, “request” that employees work on public holidays and cannot “require” employees to work on public holidays.

While this decision will impose additional administrative burdens on employers, employers will ultimately be able to require employees to work on public holidays if their request to work on a public holiday is “reasonable” and it is not “reasonable” for the employee to refuse the request.

Facts

OS MCAP employed production employees to operate mobile machinery, including shovels, excavators, loaders and trucks, for its mining clients, including BHP’s operations at the Daunia coal mine. OS MCAP’s services contract required it to provide production services at the Daunia coal mine 24 hours a day, 365 days a year with a maximum of 7 employees per roster panel to be absent at any one time.

OS MCAP’s employment contracts contained a clause stating “you may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration”. On commencement, OS MCAP’s employees were given a laminated roster identifying all of the shifts they were required to work, including the public holidays they were required to work.

Following a number of employees applying for leave on Christmas Day and Boxing Day, OS MCAP told employees it would pull names out of a hat to determine who would be allowed to be away on Christmas Day and Boxing Day.

After it became apparent that OS MCAP production targets at the Daunia coal mine in December would reduce and OS MCAP could enable additional employees to take leave, OS MCAP told employees that they could raise with their line leader if they had special circumstances or needed to take time off over the festive season. Approximately 9 employees were granted leave on Christmas Day or Boxing Day. Approximately 85 employees rostered to work on Christmas Day and Boxing Day were required to attend work.

FW Act

Section 114 of the FW Act provides:

Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

(a) the request is not reasonable; or

(b) the refusal is reasonable.

(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(c) whether the employee could reasonably expect that the employer might request work on the public holiday;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) in relation to the refusal of a request–the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h) any other relevant matter.

Judgment

The Construction, Forestry, Maritime, Mining and Energy Union (Union) brought proceedings against OS MCAP in the Federal Court of Australia alleging that OS MCAP had contravened the FW Act by requiring 85 employees to work on Christmas Day and Boxing Day. After being unsuccessful at first instance, the Union appealed to the Full Court.

The Full Court found that OS MCAP had contravened the FW Act. The Full Court held that to comply with s 114, an employer must, in the first instance, “request” that an employee work on a public holiday to give the employee the opportunity to discuss and negotiate with the employer and potentially refuse the employer’s request.

The Full Court did not accept that this interpretation would skew the balance against employers in favour of employees. The Full Court noted that an employee must work on a public holiday if an employer has made a request for the employee to work, the request is reasonable and any refusal by the employee to work is not reasonable.

The Full Court also did not accept OS MCAP’s argument that this interpretation would be fundamentally unworkable because an employer could never have a roster that included working hours on public holidays or have a contractual requirement to work on public holidays, ruling:

An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.

What does this mean for employers?

At present, it is not clear whether OS MCAP will seek to appeal this decision to the High Court of Australia.

In the meantime, an employer seeking to engage employees to work on a public holiday should ensure:

• there is a request, not a direction, to work on a public holiday;
• the request is reasonable; and
• the request indicates that the employee is entitled to refuse the request if that refusal is reasonable.

Where a reasonable request is made and the employee does not have a reasonable basis for refusing the request, the employee is required to work on the public holiday.

As the Full Court has suggested, employers can circulate draft rosters, state why that request is reasonable and ask employees to confirm that they agree to work on the allocated public holiday or, if they decline working on the public holiday, provide the reasons why.

Next steps

In light of the decision, employers should review their employment contracts, rostering practices and enterprise agreements to avoid inadvertently contravening the FW Act and being exposed to legal claims from employees, unions, and the Fair Work Ombudsman.

Bennett’s Employment Law Team provides advice on all aspects of employment law and industrial relations. If you have any queries relating to your ability to require employees to work on public holidays, please contact Stephen Kemp, Consultant, or Nicholas Parkinson, Senior Associate.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.